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The Virginia Criminal Sentencing Commission
June 11, 2007
Meeting Minutes
Members Present:
Judge Alper, Judge Bach, Linda Curtis, Eric Finkbeiner, Judge Fulton, Delegate Gilbert, Douglas Guynn, Robert Hagan, Judge Harris, Francine Horne, Judge Humphreys, Judge Hupp, Martin Kent, and Judge Kirksey
Members Not Present:
Andrew Sacks and Senator Stolle
The meeting commenced at 10:10 a.m. Judge Bach asked the Commission members to approve the minutes from the last meeting.
Agenda
I. Approval of Minutes
Approval of the minutes from the March 19, 2007, meeting was the first item on the agenda. The Commission unanimously approved the minutes.
The second item on the agenda was the 2007 Sentencing Guidelines Training Program. Judge Bach asked Mr. Fridley to lead the discussion on that agenda item.
II. 2007 Sentencing Guidelines Training Program
Mr. Fridley reported the Commission’s training staff has offered training at 46 training seminars held in 25 different locations and plan to offer four more “Introduction to Guidelines” seminars during the remainder of the summer. The seminar offered in the summer is entitled Introduction to Sentencing Guidelines designed for new attorneys and probation officers. A registration form for this seminar was included in the Commission member’s meeting materials.
He remarked that over 1,100 guidelines users either attended or are scheduled to attend training seminars by the end of the summer. The majority of the participants in the statewide seminars are probation officers followed by Commonwealth’s attorneys. While conducting seminars, Mr. Fridley found that most Commonwealth’s attorneys and defense attorneys accept, without question, the accuracy of guidelines forms as prepared by probation officers. The probation officers have developed a well-earned reputation for having a higher rate of objectivity and accuracy in preparing the guidelines than those prepared by the prosecutors. This observation is likely the reason for attorneys not to question the scoring of the guidelines as prepared by the probation officers.
Mr. Fridley remarked that, for the first time, the training staff offered a guidelines-related legal ethics class tied to the criminal sentencing guidelines system. The Virginia State Bar provided great assistance in helping in the development of the class material and participated with the training staff in the presentation of the seminar. The training staff offered the first Ethics seminar the week prior to the Sentencing Commission meeting and they received a lot of positive feedback from the attendees. There are now plans to offer more of the legal ethics seminars in other sites throughout the Commonwealth in the future.
Judge Harris asked if the ethics seminar on the preparation and presentation of sentencing guidelines forms was a part of the agenda of the Chief Justice’s Indigent Defense Training Initiative program that took place last month. Mr. Fridley responded that the Criminal Sentencing Commission was not involved in that program. Judge Harris remarked that perhaps the sentencing guidelines ethics program could be integrated into the program in the future. He noted that the Chief Justice’s training initiative program is offered at no charge, as a service to members of the Bar. Lawyers, who represent Virginia’s indigent criminal population either as public defenders or as court appointed counsel, attend the program for free. Judge Harris suggested that Dr. Kern contact the Director of the Virginia Indigent Defense Commission, Dave Johnson, to explore the possibilities of integrating into this annual program the ethics seminar on lawyer responsibilities in the preparation and presentation of sentencing guidelines forms.
Judge Humphreys commented that the training seminars are now offered for all sentencing guidelines users. Given the development of the new ethics component, he wondered if the class offerings for attorneys should be separate from those offered to all other users. Probation officers, he observed, may not want to attend the ethics training seminar since they are not required to have MCLE credits. He suggested two track training - one for probation officers and one for attorneys. Judge Humphreys reminded members that various groups offer annual training seminars to new public defenders and Commonwealth’s attorneys each year. When legal ethics credits are available, he remarked, it makes training seminars much more attractive for attorneys. In sum, he suggested that the training staff should strongly consider a two-track training program. Judge Humphreys commented that probation officers may walk out of a legal ethics class because they do not need it nor find it relevant to their specific job duties. Mr. Fridley expressed some reservations about excluding probation officers from this element of training. He commented that probation officers often have raised some of the ethics scenarios to the Commission. The mixed groups of professional who attend the training seminars (e.g., attorneys and probation officers), he felt, brought a better level of discussion to the classes. Judge Humphreys responded that if the probation officers are willing to go to such a seminar then that is great. No group of professionals in the criminal justice system, he noted, can ever have too much training on the topic of appropriate ethics. However, he again reiterated that the central focus of this newly developed seminar should be attorneys and that priority needs to be placed therein. Mr. Fridley said he would look into the possible options for ethics training seminars for new court-appointed attorneys, public defenders and Commonwealth’s attorneys.
Judge Harris asked if training is offered for new Commonwealth’s attorneys. Ms. Curtis said that training for new employees of their offices is offered in March. Judge Harris remarked that this type of sentencing guidelines training would be a great addition to that particular curriculum offering. Ms. Curtis responded that she would talk to the planning committee of the Commonwealth’s Attorneys’ Training Council in September about their Spring Institute training agenda to see if guidelines ethics training could be added.
Mr. Walt Pulliam of the Department of Corrections said that the State Compensation Board also offers annual training for Commonwealth’s attorneys as well. He suggested that this particular venue could offer another opportunity to integrate this topic into a widely attended seminar. Judge Kirksey observed that more sentencing guidelines users are seeking training seminar opportunities in his area of Virginia (southwest).
Judge Bach thanked Mr. Fridley for his presentation. He then remarked that for some time now, the Sentencing Commission staff, with the great assistance of Judge Humphreys, has been working with the Virginia State Bar to develop an ethics component to the sentencing guidelines training curriculum. The Commission is extremely pleased to announce that the Virginia State Bar has approved one credit hour for legal ethics for those who enroll in the course entitled “Ethical Hypotheticals Involving Sentencing Guidelines.” By presenting the entire seminar at the Commission meeting, members who are attorneys will receive one hour of MCLE ethics credit.
Jody Fridley and Angela Kepus were joined in this presentation by Leslie Haley of the Virginia State Bar. Ms. Haley serves as Assistant Ethics Counsel for the State Bar and staffs the Legal Ethics Committee. Her primary responsibility includes providing legal ethics advice to lawyers throughout the Commonwealth on the interpretation of the rules of professional responsibility. Judge Bach then asked Ms. Haley to begin the next item on the agenda, Ethics Component of Sentencing Guidelines Training.
IV. Ethics Component of Sentencing Guideline Training
Ms. Haley began her presentation by saying that the Legal Ethics Department of the Virginia State Bar has a primary responsibility of manning a hotline for lawyers. Lawyers from around the Commonwealth call with questions concerning different aspects of their ethical duties and responsibilities to their clients. All conversations and advice are confidential. The Legal Ethics Department also conducts training classes wherein attorneys can receive continuing legal education (CLE) credits. She commented that it was interesting that probation officers attended the legal ethics training seminar last week. Probation officers, she observed, raised different questions than those that were poised by the members of the legal profession. She remarked that the discussions that ensued were very interesting and lively between the groups.
She continued by saying that the training unit has been asked in the past to conduct advanced training on sentencing guidelines issues with an ethics component. Ms. Haley reminded the Sentencing Commission members that ethics counsel from the Virginia State Bar advised the Commission staff that an attorney from the Commission could propose the questions to the State Bars’ Ethics Committee. Then, with responses of the Ethics Committee, supporting case law and legal ethics decisions, an ethics component could be developed for training seminars. She reported that the questions that were provided to the Commission members at the March meeting were also given to the legal counsel from the Virginia State Bar. Judge Humphreys, Commission staff and Ms. Haley subsequently met to determine scenarios that addressed matters of legal ethical behavior and other scenarios that were not currently covered by existing ethics opinions.
Ms. Haley, Mr. Fridley and Ms. Kepus proceeded to describe and cover four different hypothetical scenarios - obligation to reveal errors, obligation to provide missing information, duty to diligently represent the client and obligation to reveal information when negotiating a plea agreement based on the criminal sentencing guidelines.
Judge Bach thanked Mr. Fridley, Ms. Kepus and Ms. Haley for their presentation and then asked Ms. Farrar-Owens to discuss the next item on the agenda, Implementation of Virginia Crime Codes (VCC) via House Bill 2541.
IV. Implementation of Virginia Crime Codes (House Bill 2541)
Ms. Farrar-Owens began by saying that the manner in which offense information is recorded on criminal justice databases has important implications for those who rely on such data to make both individual and system-wide decisions. Recording offense information in a uniform fashion could greatly improve the efficiency and the quality of criminal justice decision-making.
Because the Code of Virginia defines many distinct criminal acts within a single statute, the statute number, by itself, is sometimes an inadequate method to identify both the specific offense committed and its statutory seriousness. The inclusion of a narrative offense description usually does not provide enough additional information to match the crime to its specific statutory penalty. She stated that, in the past, offense descriptions have not been standardized across criminal justice data systems, or even within a single agency’s data system, and often have lacked the elements of the crime needed to make distinctions between discrete offenses.
She remarked that a set of standardized offense codes exists that accurately identify each unique crime in the Code of Virginia and which, when entered into a data base, is capable of generating the statutory reference number as well as a literal offense description of critical offense elements. Ms. Farrar-Owens said that the offense coding system is the Virginia Crime Code (VCC) system. The VCC system was established in the mid-1980s and, since 1995, has been maintained and updated by the Criminal Sentencing Commission.
Ms. Farrar-Owens stated that the VCC system is user-friendly. The VCCs are comprised of a combination of nine letter and numbers (e.g., MUR-0925-F2). The first three letters of each VCC represent an abbreviation of the broad offense title under which the crime falls. For example, the prefix “MUR” is used for all murder/homicide offenses. The last two characters represent the seriousness based on the statutory maximum penalty for the crime. A seriousness index of “F2” means that the crime is defined in the Code as a Class 2 felony with a statutory maximum penalty of life.
She then discussed House Bill 308 which was introduced to the 2002 General Assembly. The final approved version of this bill required, if reenacted in 2003, the use of Virginia Crime Code references on all reports to the Central Criminal Records Exchange and to any other criminal offense or offender databases maintained by the State Police, the Supreme Court of Virginia, the Department of Corrections, the Department of Juvenile Justice, the Virginia Parole Board and the Department of Criminal Justice Services. The Virginia Crime Code references are maintained by the Virginia Criminal Sentencing Commission. The bill designated affected agencies to meet and submit a written plan for accomplishing these requirements to the Virginia State Crime Commission by December 1, 2002. The Virginia State Crime Commission was required to coordinate the activities of the group. She stressed that this act would not have become effective unless reenacted by the 2003 Session of General Assembly.
House Bill 2541 was introduced and passed in 2003 which required the use of Virginia Crime Code references for jailable offenses on all charging documents issued by magistrates, criminal warrants, summons, criminal indictments, information and presentments, criminal petitions, summonses and dispositional documents from criminal trials, effective October 1, 2004. The crime codes would be recorded and stored in computer systems maintained by the State Police, the Supreme Court, the Department of Corrections, the Parole Board, the Department of Criminal Justice Services, the State Compensation Board and the Department of Juvenile Justice. The approved legislation stated that the crime codes are to be used only to facilitate administration and research, and are not to have any legal standing related to a particular offense or offenses.
The approved legislation also clarified that no indictment or other accusation will be invalid if the Virginia Crime Code references are omitted or stated incorrectly. This legislation was sponsored by the Virginia State Crime Commission.
Ms. Farrar-Owens continued by saying that many agencies were already using the VCC system prior to the 2003 legislation. For instance, the Virginia Compensation Board’s website had already in place a VCC look-up feature. Since the passage of the latest legislation, the use of the VCC codes has expanded. The Supreme Court E-magistrate information system, which was implemented statewide in 2005, uses the VCC database.
The implementation of the VCC system was folded into a Department of Criminal Justice (DCJS) program known as the Integrated Justice Program (IJP). The program is a collection of coordinated projects to improve criminal justice processing and sharing of information. The first major project of the IJP was the Charge Standardization Project and the implementation of the VCC system was incorporated into the existing project. The Criminal Sentencing Commission was invited to participate in the early stages of the project. The project involved development of offense tracking numbers (OTNs) to improve case tracking and implementation of a scheme called the Uniform Statute Table (UST). The UST is largely based on VCCs with some differences. She noted that differences between VCC and UST systems appear mostly related to specific agency requests for certain types of information.